5-2-90 agendaCity of Richfield, Minnesota
Council Letter No. 119
Agenda May 2, 1990
Issue Statement:
Consideration of a contract for Private Development with the
Robert Larsen Partners, Inc. regarding The Promenade to be
constructed in the ILN.
Background:
On April 16, 1990, the HRA was presented with a draft Contract
For Private Development. Following discussion, the HRA indicated
their support for the concepts contained in the draft document by
directing staff to prepare the final draft document. It was then
to be presented for action by the HRA and City Council at the end
of April or as soon thereafter=as possible. This direction was
contained in a motion adopted unanimously.
Recommendation:
The HRA and City Council each separately adopt a motion approving
the proposed Contract For Private Development with the Robert
Larsen Partners.
Basis of Recommendation:
1. The November 20, 1989 Agreement with the City, HRA and
Larsen Partners called for submission of a Contract For
• Private Development by the end of April, 1990.
2. While the proposed Contract will be reviewed at the May 2
meeting, the significant elements are listed below:
a. A retail "power center" of 338,900 square feet would
be constructed west of Lyndale Avenue as Phase I.
b. The minimum market value will be $33,500,000. An
Assessment Agreement will establish this amount as of
January 2, 1993. On January 2, 1992 the minimum value
will be $13,400,000.
c. The Developer is required to purchase all the property
for Phase I (retail center) and Phase II (Cloverleaf
site) directly or through condemnation with assistance
from the HRA.
d. Larsen will initially pay all costs relating to site
assembly including real estate, fixtures, relocation,
attorney's fees and HRA costs.
Larsen will be paid a land write-down over a base
cost through a combination of bond proceeds, pay-
as-you-go and other funds as limited by the Contract.
e. The attached chart provides a summary of funding sources
and uses for the public improvements and the Larsen
development write-down.
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The risk to the City has been greatly minimized.
For example, if the amount of tax increment is
insufficient to support the public improvement bonds,
a special assessment will be levied against the
Larsen property.
The Developer will be making a significant payment for
the land. Additional funds will be provided by the HRA.
However, the majority of those funds will be advanced on
a pay-as-you-go basis. As the development pays taxes, a
portion of the increment will be returned to the
Developer. The money paid to the Developer is determined
by the amount of taxes paid.
f. This Contract supersedes the November 20, 1989 Agreement.
3. An information letter was mailed to property owners in the
redevelopment site (copy attached). The letter
- informed them of the May 2 HRA and City Council meeting;
- summarized the proposed Contract;
- encouraged them to contact staff to participate in the
mediation process.
• Alternative Recommendation:
1. Amend the Contract.
2. Reject the Contract
Discussion/Decision Mode:
Approval of the Agreement at this time is essential to keeping
this a financially viable project.
Respectfully submitted,
-.(X
Ja a D. Prosser
Ci Manager
JDP:cak
Synopsis of
Contract For Private Development
Robert Larsen Partners, Inc.
Article I.contains definitions of terms, a list of exhibits and
rules of interpretation for the contract.
Article II contains representations by the redeveloper (Larsen
Partners) and HRA and City including:
-The redeveloper represents that it is reasonably certain it
can obtain the necessary financing and provide improvements
valued at a minimum of $33.5 million.
-The redeveloper agrees to obtain the necessary permits and
approvals and to follow applicable environmental laws and
regulations.
-The HRA and City represent they are legally authorized to
enter into the agreement, they will provide the funding needed
and not unreasonably withhold approvals related to the
project.
Article III discusses the land write-down assistance to be
.provided by the HRA and the conditions which must be met before
the payments will be made. The land write-down represents money
to be made available to the developer beyond the amount which he
must provide from his own sources. There are many conditions for
• receipt of this money, all of which are important. Major
conditions include ownership of the property, evidence of
financing to construct, executed construction contracts, and
evidence that a minimum of 70$ of the new space is leased.
A total of $3 million will be paid to the developer for land
write-down as they acquire property for the project. This will
be.funded.by.a.combination of Municipal State Aid (MSA) and tax
increment redevelopment bonds. The bonds will be paid by the tax
increment from the ILN. The MSA money will pay the developer for
the right-of-way needed by the City to upgrade 77th Street on the
south.
An additional amount of up to $6 million may be paid to the
developer as part of the land write-down. However, this will be
on a "Pay-As-You-Go" basis. That is, once the Larsen project
begins paying taxes, a portion of the annual tax increment not
needed to pay bonds will be returned to them. If taxes are not
paid, the payment won't be made to the developer.
Section 3.7 indicates that the developer must notify the city of
the status of property acquisition by July 1, 1990. It describes
the procedure then to be followed in pursuing condemnation and
contains a provision for the developer to continue negotiations
after the July 1 date. For those properties for which
condemnation will be filed, the developer must deposit with the
HRA the anticipated cost of that property. This section and the
sections which follow-through Section 3.10, also provide a basis
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under which the agreement may be terminated or performance dates
modified.
Article IV establishes the requirements for the construction of
the improvements in terms of the process.
Article V states the process to be followed in constructing and
financing the public improvements. These improvements will be
funded by MSA and tax increment redevelopment bonds. The bonds
will be amortized by the tax increment. If the increment is
insufficient, the Larsen development will be specially assessed.
Article VI deals with insurance requirements for the development.
Article VII discusses the tax increment and the Assessment
Agreement which establishes the minimum value of the new
construction.
Articles VIII-XI deals with other aspects of financing, defaults
and.prohibitions on assignment and transfer.
Several exhibits relate to the body of the Agreement.
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•
City of Richfield • 6700 Portland Avenue - Minnesota 55423-2599
City Manager Mayor Council
James D. Prosser Steve Quam Edwina Garcia Ivan Ludeman
Martin Kirsch Michael Sandahl
April 27, 1990
Dear ILN Property Owner:
This letter is intended to update you with regards to
redevelopment activities. Specifically;
The proposed developer's agreement with Robert Larsen
Partners.
-.Action on the agreement by the city.
- Status of mediation services.
0
The HRA and City Council are scheduled to meet and act on the
proposed developer's agreement on Wednesday, May 2nd at 7:00 P.M.
in City Hall. Because of scheduling conflicts, it was not
possible to hold the meeting earlier in the week. A copy of the
proposed agreement is available at the receptionist desk at City
Hall. You may review the document in a room which has been
reserved for this purpose. No appointment is necessary. The
terms of the agreement will be presented on Wednesday at the 7:00
P.M. meeting. While there maybe modifications to this proposed
agreement, the final agreement should vary only slightly from it.
A brief synopsis of the proposed agreement is attached.
The final point of information is related to mediation. The
Mediation Center will.begin to schedule mediation sessions.
Those of you who have already indicated a willingness to
participate.in mediation will be contacted directly by the Center
next week. The first sessions will be scheduled for the week of
May 7th. For those of you who have not yet given that
indication, please contact Bruce Palmborg at 861-9760. He will
answer any questions you may have and also pass your name on to
the Center if you elect the mediation option. It is important to
remember that the mediation is a voluntary - non binding process.
Sincerely
James D. Prosser
city manager
JDP:dkh
R90-1-0096
0
Telephone 861-9700 (612)
Fax 861-9749
An Equal Opportunity Employer
c:
4/25/90
CONTRACT FOR
PRIVATE DEVELOPMENT
THIS AGREEMENT, made and entered into this day of ,
1990, by and between THE HOUSING AND REDEVELOPMENT AUTHORITY OF
THE CITY OF RICHFIELD, MINNESOTA, a Minnesota public body corporate and
politic (HRA), the CITY OF RICHFIELD, a Minnesota municipal corporation (City)
and ROBERT LARSEN PARTNERS, INC. a Minnesota corporation (Redeveloper).
WITNESSETH:
WHEREAS, the City and HRA have established the Interstate- Lyndale-
Nicollet Redevelopment Project Area ("Project Area") under the authority of
Minnesota Statutes, Chapter 469 (the "Act"), and have established a
Redevelopment Tax Increment Financing District ("TIF District") and adopted a
Financing Plan ("TIF Plan") for the TIF District to facilitate the financing of public
development and redevelopment costs in the Project Area; and
WHEREAS, the City and HRA deem it to be in the public interest to
facilitate and encourage redevelopment of the Project Area by a combination of
public and private activity within the Interstate-Lyndale-Nicollet Redevelopment
Project Area and in accordance with the TIF Plan adopted by the City, on
November 12, 1985, and HRA on October 21, 1985, following extensive study and
preliminary work conducted by the City and HRA and others engaged by them; and
WHEREAS, the Redeveloper has proposed a development ("Development")
within such Project Area which the HRA and City believe will promote and carry
out the objectives for which redevelopment is undertaken, will be in the vital best
interests of the City, will promote the health, safety, morals, and welfare of its
residents and will be in accord with the public purposes and provisions of the
applicable state and local laws and requirements under which the Project has been
undertaken and is being assisted; and
WHEREAS, the Redeveloper is willing to purchase property from third
parties and from the City or HRA within the Project Area ("Redevelopment
Property") and to develop the Redevelopment Property for and in accordance with
this Agreement; and
WHEREAS, consistent with the TIF Plan, the City and the HRA, are willing
to provide financial assistance and construct, reconstruct, and maintain certain
public improvements in accordance with the provisions of this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual obligations
of the parties contained herein, each of them does hereby represent, covenant and
agree with the others as follows:
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ARTICLE I
DEFINITIONS, EXHIBITS,
RULES OF INTERPRETATION
Section 1.1. Definitions. In this Agreement, unless a different meaning
clearly appears from the context:
"Act" means the Economic Development Act, Minnesota Statutes, Chapter
469, as amended.
"Agreement" means this Agreement, as the same may be from time-to-time
modified, amended, or supplemented.
"Assessment Agreement" means the Assessment Agreement and the form of
the Agreement contained in Exhibit D between the Authority and the Redeveloper
establishing a Minimum Market Value for the Redevelopment Property and
complete Minimum Improvements.
"Authority" means the Housing and Redevelopment Authority in and for the
City of Richfield, or any successor assigns.
"Bonds" means collectively:
(a) $1,900,000 General Obligation Redevelopment Bonds, Series
1988A (hereinafter "Existing Bonds").
(b) General Obligation Tax Increment Bonds, Series 199A
(hereinafter "Road Bonds").
(c) General Obligation Taxable Tax Increment Bonds, Series 199B
(hereinafter "Land Bonds").
"Certificate of Completion" means the certification, in the form of the
certificate contained in Exhibit C attached to and made a part of this Agreement,
provided to the Redeveloper, pursuant to Section 4.5 of this Agreement.
"City" means the City of Richfield.
"Completion of Construction" means with respect to any phase the
completion of construction of the Minimum Improvements for that phase except
for tenant finish work.
"Construction Contract" means a contract or contracts which provides for
completion of a phase on the Minimum Improvements.
"County" means the County of Hennepin.
"Event of Default" means an action by the Redeveloper listed in Article X
• of this Agreement.
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"Equity" means contributions or funds by Redeveloper sufficient to satisfy
the providers of Financial Commitments and to satisfy the other obligations for
which Equity is required hereunder.
"Financial Commitment" means a written document which sets forth the
conditions which, if satisfied by the Redeveloper, entitles it to a loan in a specified
amount at specific loan terms.
"Minimum Improvements" means the improvements to be constructed by the
Redeveloper on the Redevelopment Property.
"Minnesota Environmental Policy Act" means the statutes located at
Minnesota Statutes Sections 116D.01 et seq., as amended.
"Minnesota Environmental Rights Act" means the statutes located at
Minnesota Statutes Sections 1168.01 et seq., as amended.
"National Environmental Policy Act" means the federal law located at 42
U.S.C. SS 4311 et seq., as amended.
"Phase II Parcel" means that tract of land lying within the TIF District
which is described as such on the attached Exhibit A.
"Phase II Property" means the tract of land comprised of the Phase II Parcel
and land contiguous thereto upon which the Public Improvements are to be
constructed and located.
"Public Improvements" means the improvements to be constructed by the
City to benefit and serve the Redevelopment Property and the Phase II Parcel in
accordance with the provisions of Article V of this Agreement.
"Redeveloper" means Robert Larsen Partners, Inc., a Minnesota corporation,
or any other entity in which the Robert Larsen is a principal shareholder or general
partner.
"Redevelopment" means the Minimum Improvements to be constructed by
the Redeveloper on the Redevelopment Property, and consisting of the
construction of approximately 338,900 square feet of retail commercial space and
related site improvements.
"Redevelopment Property" means the real property described as such of
Exhibit A of this Agreement.
"State" means the State of Minnesota.
"Tax Increment" means that portion of the real property taxes which is paid
with respect to the Redeveloper Property and which is remitted to the Authority as
tax increment pursuant to the Tax Increment Act, after reduction (if any) of fiscal
disparities contributions which are mandated by state law to be made with respect
to any parcel.
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• "Tax Increment Act" means Minnesota Statutes Section 469.174 through
469.179, of the Economic Development Act.
"Tax Official" means any City or county assessor; County auditor; City,
County or State board of equalization, the commissioner of revenue of the State,
or any State or federal district court, the tax court of the State, or the State
Supreme Court.
"Unavoidable Delays" means delays which are the direct result of strikes,
other labor troubles, fire or other casualty to the Minimum Improvements,
litigation commenced by third parties which, by injunction or other similar judicial
action, directly results in delays, or acts of any federal, state or local
governmental unit other than those provided for under this Agreement or any
other cause beyond the control of Redeveloper which directly results in delays,
provided, however, that adverse market conditions affecting the marketability or
profitability of the Minimum Improvements, or the inability to secure financing of
the Minimum Improvements shall not constitute Unavoidable Delays.
"Maturity Date" means the date on which the principal of and interest on
the Bonds is paid in full.
1.2. Exhibits. The following exhibits are attached to and made a part of
this Agreement.
A.
B.
C.
D.
E.
F.
G.
Redevelopment Property Description;
Certificate of Completion;
Assessment Agreement and Assessor's Certification;
Public Improvements to be Constructed;
Special Assessment Agreement;
Limited Revenue Note ("Note");
Public Improvement Area.
1.3. Rules of Interpretation. (01) This Agreement shall be interpreted in
accordance with and governed by the laws of the State of Minnesota;
(02) The words "herein" and "hereof" and words of similar importance,
without reference to any particular section or subdivision refer to this Agreement
as a whole rather than any particular section or subdivision hereof;
(03) Any titles of the several parts, articles and sections of this
Agreement are inserted for convenience and reference only and shall be
disregarded in construing or interpreting any of its provisions.
ARTICLE II
REPRESENTATIONS
Section 2.1. Representations by the Redeveloper. (01) The Redeveloper
has the power to enter into this Agreement and has duly authorized the execution,
. delivery, and performance of this Agreement by proper action.
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(02) If the conditions precedent to construction occur, the Redeveloper
reasonably believes that it has the capability to obtain necessary Equity and a
Financial Commitment necessary for construction of the Minimum improvements.
(03) If the conditions precedent to construction occur, the Redeveloper
will construct the Minimum Improvements described in the Concept Plans in
accordance with the terms of this Agreement, the Redevelopment Plan and all
local, state and federal laws and regulations. The Minimum Improvements and
Redevelopment Property will have a Market Value of at least $33,500,000.
(04) The Redeveloper will exercise all reasonable efforts to obtain, in a
timely manner, all required permits, licenses, and approvals and will meet in a
timely manner, all lawful requirements of all local, state, and federal laws and
regulations which must be obtained or met before the Improvements may be
constructed.
(05) Redeveloper will comply in all material respects, with all applicable
local, state and federal environment laws and regulations, will have obtained any
and all necessary environmental reviews, licenses or clearances under, and will be
in material compliance with the applicable requirements of the National
Environmental Policy Act of 1969, the Minnesota Environmental Policy Act, and
the Critical Area Act of 1973 and any other applicable environmental law or
regulation. Redeveloper has not received notice or communication from any local,
state or federal official indicating that the activities of Redeveloper may be or
will be in violation of any environmental law or regulation. Redeveloper is not
• aware of any facts the existence of which would cause the Redeveloper to be in
violation of any local, state or federal environmental law, regulation or review
procedure or which would give any person a valid claim under the Minnesota
Environmental Rights Act;
Should the City or HRA, upon request of Redeveloper, elect to seek
environmental review pursuant to the Alternative Urban Areawide Review Process
("AUARP"), Redeveloper agrees that it will indemnify, hold harmless and release
the City, the HRA and their officers, agents and employees from any claim or
cause of action occasioned by or arising out of the use of such environmental
review process. The Redeveloper also agrees that it will reimburse the City and
HRA for all costs and expenses incurred by them in connection with environmental
reviews.
2.2. Representations by HRA and City. The HRA and City make the
following representations as the basis for the undertaking on their respective parts
herein contained.
(01) The HRA and City are authorized by law to enter into this
Agreement and to carry out their obligations hereunder.
(02) Subject to the applicable provisions of this Agreement, the City will
in the reasonable exercise of its discretion, sell its Bonds and make the proceeds
available to the HRA for the performance of its obligations hereunder. The City
and HRA agree to provide information to Redeveloper regarding the structuring,
sizing and timing of the Bonds, and to consider comments from the Redeveloper
. regarding such matters.
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(03) The HRA and the City shall cooperate with Redeveloper in its efforts
to obtain all federal, state, and regional agency land use, environmental or other
regulatory approvals necessary to implement the Project, and will not unreasonably
delay consideration of or unreasonably withhold issuance of any permits, licenses or
approvals required to be given by the City or HRA in connection with the
Development.
ARTICLE III
LAND WRITEDOWN ASSISTANCE
Section 3.1. Statement of Intent. It is the intention of the parties that an
element of the assistance to be provided to the Redeveloper be in the nature of a
land writedown. The HRA and City have determined that the reasonably expected
reuse value of the Redevelopment Property is approximately $9,000,000 less than
the reasonably anticipated costs of acquisition of the Redevelopment Property.
That amount (hereinafter the "Land Writedown") shall be paid by the HRA to the
Redeveloper in accordance with, and subject to the limitations hereinafter
contained. It is the further intention of the parties that, except as hereinafter
qualified, title to the Redevelopment Property shall not pass to the HRA, and that,
except as hereinafter qualified, this Agreement shall not be construed so as to
create in the HRA any right, title or interest in the Redevelopment Property.
• 3.2. Payment of Land Writedown. The HRA agrees, subject to the
provisions thereinafter contained, the Land Writedown as follows:
(01) On the date of the Redeveloper has conveyed all of those portions of
the lands shown on the attached Exhibit G intended to be used for Public
Improvements to the City, the HRA shall pay to the Redevelopment the sum of
$1,000,000.
(02) On the dates upon which the Redeveloper has acquired fee simple
title to each of the parcels which comprise the Redevelopment Property the HRA
shall pay to the Redeveloper an amount of money equal to $2,000,000 multiplied by
the percentage of the square footage of each such parcel to the total square
footage of all of the land which comprises the Redevelopment Property, provided,
however, that the aggregate amount of all payments made pursuant to this
paragraph (02) shall not exceed $2,000,000.
(03) Pursuant to and according to the terms and limitations of the Limited
Revenue Note, a copy of which is attached hereto as Exhibit F, the HRA shall pay
to the Redeveloper the sum of $6,000,000 together with accrued interest at the
rate stated in Exhibit F. The face value of the Note will be adjusted prior to
execution to reflect the Redeveloper's actual costs to assemble the Redevelopment
Property.
3.3. Conditions Precedent to Payment.
• (01) Payment of the Land Writedown described in paragraph (01) of
Section 3.2 shall not be made until all of the following conditions have been met:
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• (a) The City has determined that the Redeveloper has obtained
and can convey marketable title to those portions of the parcels described in
Section 3.2 (01) which are to be utilized for Public Improvements.
(b) The HRA has received evidence establishing to the
satisfaction of the HRA that the Redeveloper has acquired fee simple title
to the Phase II Property.
(c) The Redeveloper has executed the Special Assessment
Agreement in substantially the form of Exhibit E hereto.
(d) The Redeveloper has conveyed, at no additional consideration
the areas of lands the Phase II Property necessary for the Public
Improvements.
(02) Payment of the Land Writedown described in paragraph (02) of
Section 3.2 shall not be made until all of the following conditions have been met:
(a) The HRA has received evidence reasonably satisfactory to the
HRA that Redeveloper has obtained marketable title to any parcel for which
the Land Writedown is requested.
(b) The HRA has received evidence satisfactory to the HRA that
the Redeveloper has obtained a construction loan in an amount which,
together with Equity is sufficient to construct the Minimum Improvements,
and at least one draw has been made.
• (c) The HRA has received evidence satisfactory to the HRA that
Redeveloper possesses the capacity to carry out its obligations under this
Agreement. If the HRA determines, in the reasonable exercise of its
discretion, that Redeveloper possesses such capacity, it shall notify
Redeveloper in writing of its approval. To assist the HRA in making such
determination, Redeveloper agrees to supply the HRA's legal counsel with
all reasonably necessary financial information (including financial
information relating to Redeveloper's principals) necessary for the making
of such determination. The HRA agrees that it will, to the maximum extent
permitted by law, treat all such information as confidential.
(d) The HRA has received evidence satisfactory to the HRA that
Redeveloper has executed Construction Contracts. If the HRA, in the
exercise of its reasonable discretion, finds the Construction Contract to be
of a guaranteed fixed price, contain a contractors performance bond and
provide for construction of the improvements, it shall notify the
Redeveloper in writing of its approval. The HRA agrees to waive the
performance bond requirement if it determines that the contractor
possesses sufficient financial strength to perform the contract without such
bond.
(e) The HRA has received evidence satisfactory to the HRA that
at least 70% of the rentable space in Redevelopment has been leased.
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• (f) The HRA has received evidence satisfactory to the HRA
concerning the steps which Redeveloper will take to obtain all necessary
subdivisions, platting, registered land surveys, land registrations or
subsequent proceedings.
(g) . The HRA has received evidence reasonably satisfactory to the
HRA that the Redeveloper has acquired marketable fee simple title to the
Phase II Parcel.
(h) All other actions, submittals or approvals required by this
Agreement to be performed or made by Closing.
3.4. Time For Redeveloper to Satisfy Conditions Precedent. All conditions
precedent to payment must be satisfied not later than 30 days prior to the date on
which payment is to be made, except for the condition described in Section
3.3(02)(b) which can be satisfied at the time of payment. In the event that all
conditions precedent to have not been satisfied or expressly waived by the HRA in
writing by 60 days prior to the date on which the City intends to advertise for bids
on the Public Improvements (with respect to the payments described in Section
3.2(01), or by December 1, 1990 (with respect to payments described in Section
3.02(02), the HRA may notify the Redeveloper in writing of the failure to meet
such condition or conditions. The Redeveloper shall have 30 days from the date of
such notice to satisfy the condition or conditions to which such notice relates. If
the Redeveloper fails to satisfy such condition or conditions within such time, the
HRA shall be relieved of its obligation to make the Land Writedown payment
provided for in the paragraph of 3.2 to which the unsatisfied condition relates.
• Redeveloper may at any time prior to the above mentioned dates, submit evidence
that a condition precedent has been satisiied, the HRA shall promptly review such
submittal and notify Redeveloper in writing whether the precondition has been
satisfied, and if not, the reasons for rejection. Redeveloper shall then have until
the above mentioned dates to make further resubmittals to the HRA for its
consideration.
3.5. Other Conditions Precedent. In addition to the preconditions to
Closing contained in Section 3.4, no payment of the Land Writedown described in
Section 3.2(02) shall not take place until:
(01) The City has received the proceeds from the sale of tax increment
bonds having sufficient net proceeds to fund the purchase price described in
Section 3.2(02).
(02) A replat of the Redevelopment Property, if such is necessary, has
been approved by the City and filed of record.
(03) All required land use approvals consistent with the intended uses have
been obtained.
3.6. Sale of Bonds. The payment of the Land Writedown described in
Section 3.2(02) is intended to be made through proceeds derived from the sale of
bonds. At such time as the City and HRA have taken such actions and done all
things required by them by law as preconditions to the sale of such bonds, and the
• Redeveloper has performed all of its obligations pursuant to Section 3.3(02), the
City shall undertake, in the reasonable exercise of its discretion to sell and issue
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• its bonds in an amount sufficient to generate net proceeds in the amount of
$2,000,000 or in such greater amount as to the City, in its descretion, may deem
appropriate. The City agrees to consult with the Redeveloper, from time to time,
regarding the sizing, structure and timing of the bond issue.
3.7. Alternative Conveyancing Procedure. The parties shall proceed in
accordance with the provisions of this Section in the event that the Redeveloper
shall notify the City on or before July 1, 1990, that the Redeveloper has been
unable to acquire all or some of the Redevelopment Property or the Phase II
Property.
(01) Upon such notification by Redeveloper, the HRA shall proceed to
have each such parcel or parcels appraised and, upon receipt of such appraisals
shall inform the Redeveloper of the market value indicated by the appraisal. Such
appraisal shall include the value of the real estate together with the value of all
immovable fixtures located thereon.
(02) Upon such notification by Redeveloper, the HRA shall proceed to
determine the amount of relocation benefits which may be payable with respect to
the acquisition of each such parcel and shall notify the Redeveloper of such
determination.
(03) The Redeveloper shall have 30 days from the date of the notifications
from the HRA described in (01) and (02) above to (i) deposit with the HRA an
amount (with respect to each such parcel) equal to the appraised value and the
• anticipated relocation costs together with the cost of such appraisal and
relocations reports and the anticipated legal and staff costs necessary to acquire
such parcel, or (ii) to notify the HRA of Redeveloper's intention to continue to
negotiate the acquisition on such parcels or parcel on its own.
(04) If the Redeveloper acts pursuant to (03)(i) above, with respect to any
parcel the HRA shall in good faith undertake the steps to seek to acquire fee
simple absolute title to such parcel at the earliest possible time through use of the
means available to it, including, to the extent necessary, the use of its eminent
domain power. The deposit described in (03)(i) above may be used by the HRA for
those purposes. The HRA shall have no obligation other than to act in good faith,
to utilize its best efforts and take all reasonable steps to attempt to acquire title.
(05) If the Redeveloper fails to elect to proceed in either of the manners
described in (03) with respect to any parcel, the HRA shall have no obligation to
acquire such parcel, and the HRA may at its option terminate this Agreement. If
the Redeveloper elects to proceed in accordance with (03)ii, and is unable, for
whatever reason to acquire such parcel or parcels and to satisfy the conditions
precedent within the time periods contained in Section 3.4 (with respect to the
Redevelopment Property) or by December 1, 1990, with respect to the Phase II
Property, the HRA shall be relieved of its obligation to make land writedown
payments to the extent described in Section 3.4, and may also, at its option
terminate this Agreement.
(06) In the event that the parties are proceeding in accordance with (03)(i)
• above and the HRA's cost to acquire and/or relocate with respect to any parcel
(including legal and other consultant costs) exceeds the total monies deposited with
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. the HRA with respect to such parcel, the Redeveloper shall have 10 days from
notification of the amount of the overrun to deposit the amount of such overrun
with the HRA, If the Redeveloper fails to make such deposit, the HRA may
discontinue its action to acquire such parcel and may at its option terminate this
Agreement.
(07) Notwithstanding the right of the HRA to terminate this agreement or
to be relieved from making land writedown payments, the HRA agrees that if the
Redeveloper or the HRA is unable to acquire all of the Redevelopment Property or
the Phase II Property, it will, prior to taking any such action, attempt to meet and
confer with the Redeveloper to determine whether the Redevelopment can proceed
without the inclusion of the unaequired parcels; and if the Redevelopment can
proceed, what alterations or modifications to this Agreement may be necessary.
3.8. Relationship of Sections.
(01) Any parcel of the Redevelopment Property which is acquired by the
HRA pursuant to Section 3.7(04) shall be disposed of in accordance with the
following provisions (to the extent applicable).
(a) The portions of the lands described in Section 3.2(01) which
are to be used for Public Improvements shall be conveyed by the HRA to the
City. The $1,000,000 Land Writedown described in Section 3.2(01) shall not
be paid to the Redeveloper until and unless (1) the Public Improvements of
all parcels described in Section 3.2(01) have been conveyed to the City
• (whether by the Redeveloper following purchase or by the HRA following
condemnation), and (ii) the precondition described in 3.3(01)(c) have been
met within the time limits provided, and the HRA's petition in condemnation
has been approved by the court.
(b) Other parcels or portions of parcels shall be conveyed to the
Redeveloper upon acquisition by the HRA, provided, however, that the Land
Writedown with respect to each such parcel described in Section 3.2(02)
shall not be paid until and unless all of the preconditions to such payment
contained in Sections 3.3(02) and 3.5 have been satisfied within the time
provided for such satisfaction; provided, however, that the precondition
described in Section 3.3(02)(c) shall be deemed satisfied when the HRA's
petition in condemnation has been approved by the court.
(02) The Phase II Site shall be conveyed to the Redeveloper upon
acquisition by the HRA, provided, however, that prior to such conveyance, the
HRA shall convey to the City those areas of land within the Phase II Property to be
used for Public Improvements.
3.9. Failure to Acquire. If all of the Phase II Property and all of the
Redevelopment Property has not been acquired (by the HRA or the Redeveloper as
the case may be) by December 1, 1990, either the HRA or the Redeveloper may at
its option, terminate this Agreement, the Assessment Agreement, and the
Repayment Agreement whereupon all the parties hereto shall be released and
forever discharged from any further obligation thereunder; provided, however, that
the HRA shall immediately convey any parcels acquired by it to the Redeveloper,
• and provided further that if the City has either sold bonds to finance the cost of
the Public Improvements or entered into contracts for construction of the same,
the Redeveloper shall remain bound to the terms of the Special Assessment
Agreement.
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• 3.10. Redeveloper's Special Termination Right. The right, obligations and
duties of the parties contained in this Agreement are expressly made subject to the
special right of the Redeveloper, which exists from the date of this agreement and
for 120 days thereafter, to cancel and terminate this Agreement by written notice
given to the HRA within such period stating that the Redeveloper has been unable
to obtain assurances of financing deemed adequate by the Redeveloper to allow it
to carry out the activities contemplated by this Agreement. Any actions or
performances required by any party under this Agreement to be performed prior to
the expiration of such period shall be suspended during the period or until the HRA
has received notice from the Redeveloper that it has received adequate assurances
of financing. Upon either such event, the parties shall, at such time, in good faith,
determine what modifications, if any, should be made to the various performance
dates contained in this Agreement.
ARTICLE IV
CONSTRUCTION OF MINIMUM IMPROVEMENTS
Section 4.1. Agreement to Construct. Subject to the acquisition of the
Redevelopment Property, the Redeveloper agrees that it will construct the
Minimum Improvements in accordance with the approved Concept Plans.
4.2. Demolition. The Redeveloper shall, at its sole expense, raze and
remove all structures on Redevelopment Property including any abandoned City
utilities.
4.3. Soil Correction. The Redeveloper shall have the sole responsibility to
make any necessary soil correction. Neither the HRA nor the City has made any
representations concerning the nature of soils, the suitability of such soils for the
Minimum Improvements, or the cost of correcting any unsuitable soil conditions.
4.4. Concept Plans. Within thirty (30) days after execution of this
Agreement by the Redeveloper, the Redeveloper shall submit schematic Concept
Plans including a marketing plan and tenant mix projections and the anticipated
dates for commencement and completion of construction. The Concept Plans shall
depict the Minimum Improvements and shall be in conformity with this Agreement,
and all applicable state and local laws and regulations. The HRA shall approve the
Concept Plans if they (a) conform to the terms and conditions of this Agreement;
(b) conform to all applicable federal, state, and local law, ordinances, rules and
regulations; (c) describe in reasonable detail the Minimum Improvements; (d) the
Minimum Improvements described in the Concept Plans together with the indicate
a Minimum Market Value, in the opinion of the Assessor of at least $33,500,000.
No approval by the HRA shall relieve the Redeveloper of the obligation to comply
with the terms of this Agreement, the terms of the Redevelopment Plan,
applicable federal, state and local laws, ordinances, rules and regulations, or to
construct the Improvements. The HRA reserves the unrestricted right to reject
the Concept Plans if in its sole discretion the HRA determines that the above
• referenced conditions have not been met. Such Concept Plans shall, in any event,
be deemed approved unless rejected in writing by the HRA, in whole or in part.
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Such rejection shall set forth in detail the reasons therefor, and shall be made
within twenty (20) days after the date of their receipt by the HRA. If the HRA
rejects the Concept Plans in whole or in part, the Redeveloper shall submit new or
corrected Concept Plans within twenty (20) days after written notification to the
Redeveloper of the rejection. The provisions of this Section relating to approval,
rejection, and resubmission of corrected Concept Plans shall continue to apply until
the Redevelopment Plans have been approved by the HRA, provided, however, that
if the Concept Plans have not been approved within ninety (90) days after the date
of this Agreement, this Agreement shall be null and void and the parties hereto
shall thereby be relieved of any further obligation or liability hereunder.
If the Redeveloper desires to make any change in the Concept Plans after
their approval by the HRA, the Redeveloper shall submit the proposed change to
the HRA for its approval. If the Concept Plans, as modified by the proposed
change, conform to the requirements of this Section with respect to such
previously approved Concept Plans, the HRA shall approve the proposed change and
notify the Redeveloper in writing of its approval. Such change in the Concept
Plans shall, in any event, be deemed approved by the HRA unless rejected, in whole
or in part, by written notice by the HRA to the Redeveloper, setting forth in detail
the reasons therefor. Such rejection shall be made within twenty (20) days after
receipt of the notice of such change.
Final construction plans and specifications shall be reviewed by the City
Building Inspector in connection with issuance of building permits. No building
permit may be issued if the final construction plans and specifications materially
depart from the approval Concept Plans.
is
4.5. Commencement and Completion of Construction. The Redeveloper
shall complete the construction of all of the Minimum Improvements within
(_) months after commencement of construction.
"Commencement of construction" shall mean, for the purpose of this Agreement,
the date upon which the Redeveloper has commenced soil correction procedures.
All work with respect to the Minimum Improvements to be constructed or provided
by the Redeveloper shall be in conformity with the Concept Plans as submitted by
the Redeveloper and approved by the HRA.
The Redeveloper shall not be considered in breach of, or default in, its
obligations with respect to the commencement and completion of construction of
the Minimum Improvements, if the occurrence of an Unavoidable Delay requires
extension of the time or times for performance of the Redeveloper with respect to
construction of the Minimum Improvements provided, that the Redeveloper shall,
within fifteen (15) days after the beginning of any such Unavoidable Delay, have
notified the HRA thereof in writing, and of the cause or causes thereof, and
further provided that the excused delay in performance may not exceed the
duration of the Unavoidable Delay, and further provided that such excused delay
may not operate to relieve Redeveloper of its obligation to complete within the
time period provided for in the Assessment Agreement.
4.6. Construction Reports. During construction the Redeveloper shall
make reports at such times and in such detail as may be reasonably requested by
the HRA concerning the progress of construction.
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4.7. Certificate of Completion. Promptly after notification by the
Redeveloper of completion of the Minimum Improvements contemplated by the
Concept Plans, the HRA shall inspect the construction to determine whether such
Minimum Improvements are completed substantially in accordance with the terms
of this Agreement. If the HRA is satisfied, it will furnish the Redeveloper with a
Certificate of Completion. Such certification by the HRA shall, except as further
provided in this Section 4.7, be a conclusive determination of satisfaction and
termination of the agreements and covenants in this Agreement, and in the Deed
with respect to the obligations of the Redeveloper to construct the Minimum
Improvements.
The certification provided for in this section shall be in recordable form. If
the HRA shall refuse or fail to provide the Redeveloper a certification in
accordance with the provisions of this Section 4.7, the HRA shall, within thirty (30)
days after written request by the Redeveloper, provide the Redeveloper with a
written statement, indicating in adequate detail in what respects the Redeveloper
have failed to complete the Minimum Improvements in accordance with the
provisions of this Agreement, or are otherwise in default, and what measures or
acts it will be necessary, in the reasonable opinion of the HRA, for the
Redeveloper to take or perform in order to obtain such certification.
ARTICLE V
PUBLIC IMPROVEMENTS
Section 5.1. Utility Relocation and Public Improvements. (a) Within the
time period set forth in Section 3.8, the City will provide the Redeveloper with
plans showing the proposed relocation of all public utilities, and the location and
nature and schedule for construction of all Public Improvements to be constructed
by the City in connection with the Project as described in Exhibit D, together with
the City's estimate of the cost of all such work.
(b) The Redeveloper shall review such plans and specifications and cost
estimates and notify the City within ten (10) days after receipt whether they are
approved. Upon such approval, the Redeveloper agrees to Petition the City for
construction of the Public Improvements pursuant to Minnesota Statutes Section
429.031, Subd. 3, and to execute, along with all other owners and encumbrancers of
the Redevelopment Property, and deliver to the HRA the Special Assessment
Agreement, attached hereto as Exhibit E. The Petition and the Special Assessment
Agreement shall be executed by the Redeveloper and shall be delivered to the HRA
not later than the date of Closing. A copy of the executed Petition shall be
delivered to the City at least five (5) days prior to the date on which it is required
to be submitted for its approval as to form and content. In the Petition, which
shall be on a form provided by the City, the Redeveloper shall waive its right to
question the validity or amount of any such special assessments under Minnesota
Statutes Section 429.031, Subd. 3. Upon receipt of the Petition, and execution of
the Special Assessment Agreement, the City agrees to conduct the necessary
proceedings for the construction of the Public Improvements pursuant to Minnesota
Statutes, Chapter 429.
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• (c) The parties acknowledge the importance of coordinating construction
of the Public Improvements and the Minimum Improvements. To that end, the
parties agree that the Redeveloper shall be allowed to make comment and provide
input both during the formulation of the plans and specifications, and during the
pre-construction stage on all issues relating to the actual construction and the time
for completion of the Public Improvements. The City agrees that, to the extent
reasonable it will direct the construction and completion of the Public
Improvements so as to coordinate with construction and completion of the
Minimum Improvements. The City also agrees, that to the extent consistent with
its desire to obtain reasonable and competitive bids, it will require the contractor
of the Public Improvements to guarantee and secure completion of those elements
of the Public Improvements which must be completed by the time that the
Development is opened for business.
ARTICLE VI
INSURANCE
Section 6.1. Insurance. It is contemplated by the parties that the
construction of the Minimum Improvements will be financed in part by private
mortgage financing. The insurance required to be carried pursuant to the financing
documents executed by the Redeveloper and the construction lenders shall be
deemed to satisfy this Agreement. This Section 6.1 shall not be deemed, however,
to relieve the Redeveloper of any of its obligations contained in Section 4.5 of this
is Agreement or of its obligation under the Assessment Agreement.
ARTICLE VII
TAX INCREMENT
Section 7.1. Binding Obligations. The obligations in this Section 7.1 shall
run with the land and be binding upon Redeveloper's successors and assigns in
interests to the Redevelopment Property.
(01) Assessment Assessment Agreement. On or before , the
HRA and the Redeveloper shall, execute the Assessment Agreements and
Certification of Assessor in the form contained in Exhibit D. The HRA shall then
present the Assessment Agreements to the Assessor for his certification. The
Assessor shall value the Redevelopment Property Minimum Improvements and
assign a Market Value to the land and Minimum Improvements which shall not be
less than the minimum market value contained in the Assessment Agreement. The
Market Value so established may, in the discretion of the Assessor exceed the value
contained in the Assessment Agreement.
(02) Review of Taxes. Except as otherwise provided in this Agreement,
the Redeveloper shall pay all real property taxes and special assessments assessed
against the property. The Redeveloper agrees that prior to the Maturity Date: (1)
it will not seek administrative review or judicial review of the applicability of any
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• tax statute determined by any tax official to be applicable to the Redevelopment
Property or the Redevelopers or raise the applicability of any such tax statute as
defined in any proceedings including delinquent tax proceedings; (2) it will not seek
administrative review or judicial review of the constitutionality of any such tax
statute determined by any tax official to be applicable to the Redevelopment
Property or the Redeveloper or raise the unconstitutionality of such tax statute as
a defense in any proceedings, including delinquent proceedings; (3) it will not
request the Assessor to reduce the assessed market value or assessed value of all or
any portion of the Redevelopment Property; (4) it will not petition the board of
equalization of the City or the board of equalization of the County to reduce the
assessed market value or tax capacity of all or any portion of the Redevelopment
Property; (5) it will not petition the board of equalization of the State or
commissioner of revenue of the State to reduce the assessed market value or
assessed value of all or any portion of the Redevelopment Property; (6) it will not
commence an action in a District Court of the State or the Tax Court of the State
pursuant to Minnesota Statutes, Chapter 278, seeking a reduction in the assessed
market value or assessed value of all or any portion of the Redevelopment
Property; (7) it will not make an application to the commissioner of revenue of the
State requesting an abatement of real property taxes pursuant to Minnesota
Statute, Chapter 270 with regard to Minimum Market Value; and (8) it will not
commence any other proceedings, whether administrative, legal or equitable, with
any administrative body within the City, the County, or the State or with any court
of the State or the Federal Government. The Redeveloper shall not, prior to the
Maturity Date, apply for a deferral of property tax on the Property pursuant to the
Act. Nothing contained herein shall be deemed to limit the right or opportunity of
the Redeveloper to challenge that part of any valuation or the Market Value which
• is in excess of the stipulated value contained in the Assessment Agreements.
ARTICLE VIII
FINANCING
Section 8.1. Limitations Upon Encumbrance. Prior to the completion of
the Minimum Improvements, as certified by the HRA pursuant to Section 4.8 of
this Agreement, neither the Redeveloper nor any successor .in interest to the
Redevelopment Property or any part thereof shall engage in any financing or any
other transaction creating any mortgage or other encumbrance or lien upon the
Redevelopment Property or any part thereof, whether by express agreement or
operation of law, or suffer any encumbrance or lien to be made on or attached to
the Redevelopment Property or any part thereof, except only for the purpose of
obtaining funds to the extent necessary for developing the Minimum Improvements.
8.2. Copy of Notice of Default to Lender. Whenever the HRA shall
deliver any notice or demand to the Redeveloper with respect to any breach or
default by the Redeveloper in its obligations under this Agreement, the HRA shall
at the same time forward a copy of such notice or demand to each holder
("Holder") known to the HRA of any mortgage or other financing agreement
authorized by this Agreement by sending such notice to last known address of the
Holder as shown in the records of the HRA.
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8.3. Lender's Option to Cure Defaults. After any breach or event of
default referred to in Section 10.1 hereof, each Holder shall (insofar as the rights
of the HRA are concerned) have the right for a period of ninety (90) days, at the
Holder's option, to cure or remedy such breach or event default to the extent that
it relates to the part of the Redevelopment Property covered by its financing and
to add the cost thereof to the debt and the lien of its financing; provided, that if
the breach or event of default is with respect to construction of the Minimum
Improvements, nothing contained in this Section or any other section of this
Agreement shall be deemed to permit or authorize such Holder, either before or
after foreclosure or action in lieu thereof, to undertake or continue the
construction or completion of the Minimum Improvements (beyond the extent
necessary to conserve or protect such Improvements or construction already made)
without first having expressly assumed the Redeveloper's obligations described in
Section 10.2 hereof by written agreement reasonably satisfactory to the HRA, to
complete the Minimum Improvements or the part thereof to which the lien or title
of such holder relates, provided further, however, that the HRA will not
unreasonably withhold its consent to any changes in the Minimum Improvements
which are requested by the Holder if the requested changes do not alter the basic
design of the Minimum Improvements or result in a decrease of the Market Value
below the minimum market value stipulated to in the Assessment Agreement. Any
such Holder who shall perform the Redeveloper's obligations under Section 4.6
hereof, relating to the Redevelopment Property or applicable part thereof, shall be
entitled, upon written request made to the HRA, to a certification by the HRA to
such effect in the manner provided in Section 4.8 of this Agreement.
8.4. HRA's Option to Cure Default. If the Redeveloper is in default under
any financing authorized pursuant to Article VIII of this Agreement, the Holder,
prior to exercising any of its remedies, shall notify the HRA in writing by sending
it a copy of any notice of default sent to the Redeveloper. If, within thirty (30)
days after receipt of said notice, the HRA cures the default, then the Holder shall
pursue none of its remedies under the financing based upon the said default of the
Redeveloper.
83. Subordination. In order to facilitate the obtaining of financing for
the construction of the Minimum Improvements by the Redeveloper, the HRA
agrees to modify and to subordinate its right under this Agreement to the mortgage
or other financing agreement held by the financial institution providing such funds,
provided, however, that nothing in this Section 8.5 shall be deemed to require the
HRA to agree to any modification or subordination of its rights which in its
judgment would be contrary to its best interests nor to any modification which
would release any financial institution or any successor or assign of such financial
institution from its obligations as described in Section 10.2(04), should such
financial institution or successor or assign acquire title to the Redevelopment
Property, or any part thereof by foreclosure or a deed in lieu of foreclosure.
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0 ARTICLE I%
PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER
Section 9.1. Representation as to Development. The Redeveloper
represents and agrees that its undertaking pursuant to the Agreement are, and will
be used, for the purpose of development of the Redevelopment Property and not
for speculation in land holding. The Redeveloper further recognizes that, in view
of (a) the importance of the development of the Redevelopment Property to the
general welfare of the community; and (b) the substantial financing and other
public aids that have been made available by the City and the HRA, for the purpose
of making such development possible; that the qualifications and identify of the
Redeveloper are of particular concern to the community and the HRA. Any
significant change with respect to the identify of the Redeveloper or the purchase
of Redeveloper's interest by any other party or parties is for practical purposes a
transfer or disposition of the property then owned by the Redeveloper, the
Redeveloper further recognizes that it is because of such qualifications and
identify that the HRA is entering into this Agreement with the Redeveloper and, in
so doing, is further willing to accept and rely on the obligations of the Redeveloper
for the faithful performance of all undertakings and covenants hereby then to be
performed.
9.2) Prohibition Against Transfer of Interest Bind Individually - For the
foregoing reasons, except as provided in Section 9.3 of this Agreement, the
Redeveloper represents and agrees that: prior to completion of the Minimum
Improvements as certified by the HRA, and without the prior written approval of
the HRA, (a) there shall be no transfer of any interest in all or a portion of the
Redevelopment Property, (b) nor shall the Redeveloper suffer any such transfer to
be made, (c) nor shall there be or be suffered to be by the Redeveloper, any other
similar significant change in the ownership of any corporate stock of the
Redeveloper or in the relative distribution thereof, or with respect to the identify
of the parties in control of the Redeveloper or the degree thereof, by any other
method or means, whether by increased capitalization, merger with another
corporation, corporate or other amendments, issuance of additional or new stock or
classification of stock, or otherwise. A transfer of corporate stock by operation of
law resulting from the death or legal incompetency of a stockholder shall not be
deemed to violate the prohibitions of this Section 9.2.
9.3) Prohibition Against Transfer of Property and Assignment of
Agreement. For the foregoing reasons, the Redeveloper represents and agrees
that:
(01) Except only by way of security for, and only for, the purpose of
obtaining financing necessary to enable the Redeveloper or any successor in
interest to the Redevelopment Property, or any part thereof, to perform its
obligations with respect to making the Minimum Improvements under the
Agreement, and any other purpose authorized by the Agreement, the Redeveloper
(except as so authorized) has not made or created, and that it will not make or
create, or suffer to be made or created, any total or partial sale, assignment,
conveyance, or any trust or power, or transfer in any other mode or form of or with
i respect to the Agreement or the Redevelopment Property or any part thereof or
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any interest therein, or any contract or agreement to do any of the same, without
the prior written approval of the HRA.
(02) The HRA shall be entitled to require, except as otherwise provided in
the Agreement, as conditions to any such approval that: (1) any proposed transferee
shall have the qualifications and financial responsibility, as determined by the
HRA, necessary and adequate to fulfill the obligations undertaken in the
Agreement by the Redeveloper (or, in the event the transfer is of or relates to part
of the Redevelopment Property, such obligations to the extent that they relate to
such part); (ii) any proposed transferee, by instrument in writing satisfactory to the
HRA and in form recordable among the land records, shall for itself and its
successors and assigns, and expressly for the benefit of the HRA, have expressly
assumed all of the obligations of the Redeveloper under the Agreement and agreed
to be subject to the terms of the Redevelopment Plan (or, in the event the transfer
is of or relates to part of the Redevelopment Property, such obligations,
conditions, and restrictions to the extent that they relate to such part); provided,
that the fact that any transferee of, or any other successor in interest whatsoever
the reason, shall have assumed such obligations or agreed, shall not (unless and only
to the extent otherwise specifically provided in the Agreement or agreed to in
writing by the HRA) relieve or except such transferee or successor of or from such
obligations, conditions, or restrictions, or deprive or limit the HRA or with respect
to any rights or remedies or controls with respect to the Redevelopment Property
or the construction of the Minimum Improvements; it being the intent of this,
together with other provisions of the Agreement, that (to the fullest extent
permitted by law and equity and excepting only in the manner and to the extent
• specifically provided otherwise in the Agreement) no transfer of, or change with
respect to, ownership in the Redevelopment Property or any part thereof, of any
interest therein, however consummated or occurring, and whether voluntary or
involuntary, shall operate, legally or practically, to deprive or limit the HRA of or
with respect to any rights or remedies or controls provided in or resulting from the
Agreement with respect to the Property and the construction of the Minimum
Improvements that the HRA would have had, had there been no such transfer or
change; (iii) there shall be submitted to the HRA for review all instruments and
other legal documents involved in effecting transfer; and if approved by the HRA
its approval shall be indicated to the Redeveloper in writing.
In the absence of specific written agreement by the HRA to the contrary, no
such transfer or approval by the HRA thereof shall be deemed to relieve the
Redeveloper, or any other party bound in any way by the Agreement or otherwise
with respect to the construction of the Minimum Improvements, or from any of its
obligations with respect thereto. The HRA may, however, in its reasonable
discretion exercised in accordance with the standards and requirements of Section
9.3(02) relieve Redeveloper if they present a transferee or assignee acceptable to
the HRA.
9.4) Information as to Stockholders or Partners. In order to assist in the
effectuation of the purposes of this Article IX of this Agreement, the Redeveloper
agrees that during the period between the execution of the Agreement and
completion of the Minimum Improvements as certified by the HRA, (a) the
Redeveloper will promptly notify the HRA of any and all changes whatsoever in the
ownership of stock or partnership interests, legal or beneficial which in the
aggregate exceed ten percent (10%) of the issued stock or partnership interests in
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• Redeveloper, or of any other act or transaction involving or resulting in any change
in the ownership or stock or partnership interests of such Redeveloper or in the
relative distribution thereof, which in the aggregate exceeds ten percent (10%) of
the issued stock or partnership interests of Redeveloper, and (b) Redeveloper shall,
at such time or times as the HRA may request, furnish the HRA with a complete
statement, subscribed and sworn to by the President, general partner, or other
executive officer of Redeveloper, setting forth all of the stockholders or partners
of Redeveloper and the extent of their respective holdings, and in the event any
other parties have a beneficial interest in such stock or partnership interest, their
names and the extent of such interest, all as determined or indicated by the
records of Redeveloper, by specific inquiry made by any such officer, of all parties
who on the basis of such records own ten percent (10%) or more of the stock or
partnership interest of Redeveloper, and by such other knowledge or information as
such officer shall have.
9.5) Approvals. Any approval required to be given by the HRA under this
Article IX of this Agreement may be denied only in the event that the HRA
reasonably determines that the performance of the "obligations of Redeveloper
under this Agreement will be materially impaired by the action for which approval
is sought. At the HRA's request, the Redeveloper shall provide to the HRA's
attorney for privileged review on behalf of the HRA financial information as to any
proposed general partners, or controlling stockholders of proposed assignees or
transferees, and financial information as to any such partnership or corporation.
0 ARTICLE X.
EVENTS OF DEFAULT
10.1) Events of Default Defined. The following shall be "Events of Default"
under this Agreement and the term "Event of Default" shall mean, whenever it is
used in this Agreement (unless the context otherwise provides), any one or more of
the following events:
(01) Failure by the Redeveloper to pay when due any payments required to
be paid under Article III and Sections 4.10 and 7.1 of this Agreement.
(02) Subject to Unavoidable Delay, failure by the Redeveloper to observe
and substantially perform any covenant, conditions, obligation, or agreement on its
part to be observed or performed hereunder.
(03) If the Redeveloper shall admit in writing its inability to pay its debts
generally as they become due, or shall file a petition in bankruptcy, or shall make
an assignment for the benefit of creditors, or shall consent to the appointment of a
receiver of themselves or of the whole or any substantial part of the Redeveloper
Property.
(04) If the Redeveloper shall file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws.
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(05) If the Redeveloper, on a petition in bankruptcy filed against them, be
adjudicated a bankrupt, or a court of competent jurisdiction shall enter an order of
decree appointing, without the consent of Redeveloper, a receiver of Redeveloper
or of the whole or substantially all of its property, or approve a petition filed
against Redeveloper seeking reorganization or arrangement of Redeveloper under
bankruptcy laws, and such adjudication, order, or decree shall not be vacated or set
aside or stayed within sixty (60) days from the date of entry thereof.
(06) If the Redeveloper is in default under any mortgage and fails to cure
any such default within thirty (30) days after written demand from the HRA to do
so.
(07) If the real estate taxes are not paid when due.
10.2) Remedies on Default. Whenever any Event of Default referred to in
Section 10.1 of this Agreement occurs, the HRA may, in addition to any other
remedies or rights given the HRA under this Agreement, but only after at least
thirty (30) days notice to the Redeveloper and its failure to cure (unless a different
cure period is provided with respect to specific defaults under this Agreement),
find the Redeveloper in default (Default) and take any one or more of the following
actions:
(01) Suspend its performance under the Agreement until it receives
assurances from the Redeveloper or mortgagee reasonably deemed adequate by the
HRA, that the Redeveloper will cure the default and continue performance under
the Agreement.
(02) Cancel pursuant to Minnesota Statutes Section 559.21, and rescind
the Agreement, in which case the 30-day cure period shall commence with notice
of cancellation.
(03) Withhold the Certificate of Completion if the Event of Default
relates to the failure of the Redeveloper to complete the Improvements as
provided in this Agreement.
(04) Take whatever action at law or in equity may appear necessary or
desirable to the HRA to collect any payments due under this Agreement, or to
enforce performance and observance of any obligation, agreement or covenant of
the Redeveloper under this Agreement.
Provided, however, that any exercise by the HRA, its successors or assigns,
of its right or remedies hereunder shall always be subject to and limited by, and
shall not defeat, render invalid or limit in any way (a) the lien of any mortgage
authorized by this Agreement and (b) any rights or interests provided in this
Agreement for the protection of the Holder of such mortgages. Provided further,
however, that should any Holder succeed by foreclosure of the mortgage or deed in
lieu thereof, to Redeveloper's interest in the Redevelopment Property or any part
thereof, it shall, notwithstanding the foregoing provision, be obligated and shall
agree in writing to perform all of the obligations of the Redeveloper, to the extent
that the same have not theretofore been performed by the Redeveloper with
. respect to the Redevelopment Property or part thereof, set forth in Article III,
20
i-9?e
0 Article IV, Article V and Article VII. Said Holder shall have no obligations pursuant
to this Agreement other than as specifically set forth in the foregoing sentence.
10.2.1) Richt to Develop the Proiect with Others. In the event that this
Agreement is terminated, cancelled or rescinded for any cause provided in Sections
10.1 or 3.3(01) of- this Agreement or any other provisions which provides for or
triggers the right of termination, cancellation, or rescission by the HRA or City
upon any breach by the Redeveloper, the HRA and the City shall have the further
right to proceed with the Development or any part thereof with any contractor or
any other individual or entity selected by the HRA. The HRA and the City shall
have the right to obtain and use, at no cost to them, all plans, specifications,
studies, reports and other data prepared by the Redeveloper or at the
Redeveloper's direction for the Development or any phase thereof. It is expressly
agreed that the consideration for rights conferred upon the City and the HRA
under this Section 1.2.1 including business opportunity and other valuable
consideration are independently adequate to create a binding obligation under this
Section 10.2.1 and that such obligation shall survive the cancellation, rescission, or
termination of this Agreement.
10.3) No Remedy Exclusive. No remedy herein conferred upon or reserved
to the HRA is intended to be exclusive of any other available remedy or remedies,
but each and every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Agreement or now or hereafter existing at law
or in equity or by statute. Except as provided in Section 10.5 of this Agreement,
no delay or omission to exercise any right or power accruing upon any default shall
• impair any such right or power or shall be construed to be a waiver thereof, but any
such right and power may be exercised from time to time and as often as may be
deemed expedient. In order to entitle the HRA or the Redeveloper to exercise any
remedy reserved to it, it shall not be necessary to give notice, other than such
notice as may be required in this Article X.
10.4.) No Additional Waiver Implied by One Waiver. In the event any
obligation contained in this Agreement should be breached by either party and
thereafter waived by the other party, such waiver shall be limited to the particular
breach so waived and shall not be deemed to waive any other concurrent, previous
or subsequent breach hereunder.
ARTICLE XI.
ADDITIONAL PROVISIONS
11.1) Conflict of Interests; HRA Representatives Not Individually Liable.
No member, official, or employee of the HRA shall have any personal interest,
direct or indirect, in the Agreement, nor shall any such member, official, or
employee participate in any decision relating to the Agreement which affects his
personal interests or the interests of any corporation, partnership, or association in
which he is, directly or indirectly, interested. No member, official, or employee of
the HRA shall be personally liable to the Redeveloper, or any successor in interest,
• in the event of any default or breach by the HRA or for any amount which may
become due to the Redeveloper or successor or on any obligations under the terms
of the Agreement.
21
Ir Oql
11.2) Nondiscrimination. The provisions of Minnesota Statutes Section
181.59, which relate to civil rights and nondiscrimination, shall be considered a
part of this Agreement as though fully set forth herein.
11.3) Provisions Not Merced With Deed. None of the provisions of this
Agreement are intended to be or shall be merged by reason of any Deed
transferring any interest in any part of the Property and any such Deed shall not be
deemed to affect or impair the provisions of this Agreement. Unless otherwise
indicated in this Agreement, the provisions of this Agreement shall be binding upon
the successors and assigns of the parties hereto.
11.4) Notice of Status and Conformance. The HRA agrees that from time
to time, upon not less than ten (10) days' prior written notice by Redeveloper, to
execute, acknowledge and deliver, without charge, to Redeveloper or to any person
designated by Redeveloper, a statement in writing certifying, to the extent true,
that this Agreement is unmodified, the principal amount of any obligation herein
created then unpaid, that the HRA has not received any notice of default, that to
the knowledge of the HRA has not received any notice of default, that to the
knowledge of the HRA no event of default exists hereunder (or if any such event of
default does exist, specifying the same and stating that the same has been cured, if
such be the case), that the HRA to its knowledge, has no claims against the
Redeveloper hereunder, and any other information reasonably requested by the
Redeveloper. It is the intention of this Section 11.4 to provide a mechanism for
obtaining estoppel certificates which may be requested by Redeveloper's
mortgagee.
11.5) Use of Tax Increment. Because the Redeveloper is willing to receive
a substantial portion of the Land Writedown over time out of the Tax Incremente
generated from the Redevelopment Property and the Phase II Parcel, it is
important that the HRA and Redeveloper reach an understanding concerning how
the tax incremenet from the District will be allocated among the Bonds and the
Repayment Note. The attached Exhibit represents the manner of allocation
which the HRA will attempt to make.
11.5A) Negotiation Agreement Terminated. The Negotiation Agreement
among the parties hereto dated November 20, 1989, is hereby terminated and
cancelled, and all parties are forever released and discharged from their
obligations thereunder.
11.6) Legal Descriptions. Not later than , the Redeveloper
shall provide the HRA with a survey of the Redevelopment Property and the Phase
II Property; which survey shall contain proper legal descriptions for such lands.
11.7) Notices and Demands. Except as otherwise expressly provided in this
Agreement, a notice, demand, or other communication under the Agreement by
either party to the other shall be sufficiently given or delivered it if is dispatched
by registered or certified mail, postage prepaid, return receipt requested, or
delivered personally:
As to the HRA: Housing and Redevelopment Authority
6700 Portland Avenue South
Richfield, Minnesota 55423
Attention: Executive Director
22
I-X
• As to the Redeveloper:
Attention:
As to the City: City of Richfield
6700 Portland Avenue South
Richfield, Minnesota 55423
Attention: City Manager
or at such other address with respect to either such party as that party may, from
time to time, designate in writing and forward to the other.
11.7. Counterparts. This Agreement may be simultaneously executed in any
number of counterparts, all of which shall constitute one and the same instrument.
0
•
23
1-;M
• IN WITNESS WHEREOF, the parties hereto have set their hands and seals as
of the day and year first above written.
THE HOUSING AND REDEVELOPMENT
AUTHORITY OF THE CITY OF
RICHFIELD, MINNESOTA
By:
Its:
By:
Its: Executive Director
CITY OF RICHFIELD
By:
Its:
By:
Its: City Manager
(REDEVELOPER)
By:
Its:
RC125-006
24
1.30
STATE OF MINNESOTA )
) ss
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 1990, by and
the Chairperson and Executive Director of the Housing and Redevelopment
Authority in and for the City of Richfield, Minnesota.
Notary Public
STATE OF MINNESOTA )
ss
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 1990, by and
the and City Manager of the City of Richfield, Minnesota, a
• municipal corporation under the laws of the state of Minnesota, on behalf of the
municipal corporation.
Notary Public
STATE OF MINNESOTA )
ss
COUNTY OF )
The foregoing instrument was acknowledged before me this
, 1990, by and
respectively, of
Redeveloper.
day of
9
on behalf of the
Notary Public
•
25
1-31
0 EXHIBIT B
CERTIFICATE OF COMPLETION
The undersigned hereby certifies that ,
a Minnesota corporation, has fully and completely complied with its obligations
under Article IV of that document entitled "Contract for Private Development,"
dated , 1990, between the CITY OF RICHFIELD and THE
HOUSING AND REDEVELOPMENT IN AND FOR THE CITY OF RICHFIELD and
ROBERT LARSEN PARTNERS, INC. with respect to construction of the
Improvements located on the tract of land described in the attached Exhibit A in
accordance with the requirements of such document and is released and forever
discharged from its obligations to construction the Improvements under such
above-referenced Article on the above-referenced tract.
• DATED:
CITY OF RICHFIELD
By
Its Mayor
By
Its City Manager
HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF RICHFIELD
By
Its Chairperson
By
Its Executive Director
RC125-006
0
I.- 3*A
•
EXHIBIT C
ASSESSMENT AGREEMENT
AND
CERTIFICATION OF ASSESSOR
THIS AGREEMENT, made and entered into this day of ,
1990, by and between the HOUSING AND REDEVELOPMENT AUTHORITY IN AND
FOR THE CITY OF RICHFIELD, a Minnesota public body corporate and politic
("HRA"), and ROBERT LARSEN PARTNERS, INC., a Minnesota corporation
("Redeveloper").
WITNESSETH:
WHEREAS, the HRA is administering a Redevelopment Project Area
•
created pursuant to Minnesota Statutes Sections 469.174 through 469.179,
inclusive; and
WHEREAS, the HRA and Redeveloper have entered into a Contract for
Private Development ("Development Agreement"), dated ,
regarding the development of certain real property ("the Property") located in the
Interstate-Lyndale-Nicollet Redevelopment Project Area and Tax Increment
Financing District in the City of Richfield legally described as the Property in
Exhibit A hereto; and
WHEREAS, it is contemplated that pursuant to said Development
Agreement the Redeveloper will construct the Improvements described in such
Development Agreement according to the terms of such Development Agreement;
and
WHEREAS, the HRA and the Redeveloper desire to establish minimum
0 469.177, Subd. 8 (a copy of which is attached as Exhibit B ; and
market values of the Property and the Improvements to be constructed thereon
during the time of the private development, pursuant to Minnesota Statutes Section
goo
• WHEREAS, the HRA and the Assessor for the City of Richfield have
reviewed the preliminary plans and specifications for the Improvements which it is
contemplated will be erected.
NOW, THEREFORE, the parties do hereby agree as follows:
1. On January 2, 1992, and until January 2, 1993, the minimum market value
which shall be assessed for the Improvements and the land described in
Exhibit A shall be $13,400,000.
2. On January 2, 1993, and thereafter until the Maturity Date, the minimum
market value which shall be assessed for the Improvements and the Lands
shall be $33,500,000.
3. Nothing in this Agreement shall limit the discretion of the Assessor for the
City of Richfield or any other public official or body having the duty to
determine the market value of the Land for ad valorem tax purposes, to
• assign to the Lands an the Improvements, market values in excess of the
minimum market value specified in this Agreement.
4. Neither the preambles nor the provisions of the Agreement are intended nor
shall they be construed as modifying the terms of the Development
Agreement.
5. This Agreement shall remain in effect and inure to the benefit and be
binding upon the successors and assigns of the parties until the Maturity
Date.
6. As provided in Minnesota Statutes Section 469.177, Subd. 8, nothing
contained herein shall be deemed to limit the right or opportunity of the
Redeveloper to challenge through any legal means that part of any valuation
on the market value applicable to the Property which is in excess of the
stipulated minimum market value contained in this Agreement; provided,
0
C-2
however, that Redeveloper may not institute or prosecute any challenge to
such excess which,- if successful, would also result in a reduction of the
assessment below the stipulated value.
7. The terms used in this Assessment Agreement shall have the meanings given
them in the Development Agreement. For the purpose of this Agreement,
"Maturity Date" shall mean the date on which the TIF Bonds and the Limited
Revenue Tax Increment Note are redeemed, defeased or paid according to
their terms.
•
RC125-006
r1
LJ
HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF RICHFIELD
By
Its Chairperson
By
Its Executive Director
ROBERT LARSEN PARTNERS, INC.
By
Its
By _
Its
C-3
1-0
• STATE OF MINNESOTA )
) ss
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 1990, by and , the
Chairperson and Excutive Director of the Housing and Redevelopment Authority in
and for the City of Richfield, a Minnesota public body corporate and politic, on
behalf of the public body.
Notary Public
STATE OF MINNESOTA )
• ) ss
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
1990, by and , the
and of Robert Larsen Partners, Inc., a Minnesota
corporation, on behalf of the corporation.
Notary Public
THIS INSTRUMENT DRAFTED BY:
HOLMES & GRAVEN, CHARTERED
470 Pillsbury Center
Minneapolis, MN 55402
• (612)337-9300
C-4
0 CERTIFICATION BY ASSESSOR
The undersigned, having reviewed the plans and specifications for the
improvements to be constructed and the market value assigned to the land upon
which the Improvements are to be constructed, and being of the opinion that the
market value contained in the foregoing Agreement appears reasonable, hereby
certifies as follows: The undersigned Assessor, being legally responsible for the
assessment of the above-described property, hereby certifies that the market value
assigned to such land and improvements upon completion of the improvements to
be constructed thereon shall not be less than the amounts contained in Paragraphs
1 and 2 of the foregoing Agreement until termination of the Agreement.
Assessor
• STATE OF MINNESOTA )
) ss
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 1990, by , the Assessor for the City
of Richfield, Minnesota.
Notary Public
0
I -.*'JI
0
EXHIBIT A to
Assessment Agreement
PROPERTY
(TO BE ADDED PRIOR TO EXECUTION
1--3$
EXHIBIT B to
. Assessment
Agreement
MINNESOTA STATUTES, SECTION 469.177, SUBDIVISION 8
Subd. 8. Assessment agreaeats. An authority may, upon
entering into a development or redevelopment agreement pursuant
to section 469.176, subdivision S, enter into a written
assessment agreement in recordable form with the developer or
redeveloper of property within the tax increment financing
district which establishes a minimum market value of the land and
completed improvements to be constructed thereon until a
specified termination date, which date shall be not later than
the date upon which tax increment will no longer be remitted to
the authority •pursuant to section 469.176, subdivision 1. The
assessment agreement shall be presented to the county assessor,
or city assessor having the powers of the county assessor, of the
jurisdiction in which the tax increment financing district is
located. The assessor shall review the plans and specifications
for the improvements to be constructed, review the market value
previously assigned to the land upon which the improvements are
to be constructed and, so long as the minimum market value
contained in the assessment agreement appears, in the judgment of
the assessor, to be a reasonable estimate, shall execute the
following certification upon the agreement:
The undersigned assessor, being legally responsible for
the assessment of the above described property upon
completion of the improvements. to be constructed
thereon, hereby certifies that the market value
assigned to the land and improvements upon completion
shall not be less than $
Upon transfer of title of the land to be developed or redeveloped
from the authority to the developer or redeveloper, the
assessment agreement, together with a copy of this subdivision,
shall be filed for record ands recorded in the office of the
county recorder or filed in the office of the registrar of titles
of the county where the real estate or any part thereof is
situated. Upon completion of the improvements by the developer
or redeveloper, the assessor shall value the property pursuant to
section 273.11, except that the market value assigned thereto
shall not be less than the minimum market value contained in the
assessment agreement. Nothing herein shall limit the discretion
of the assessor to assign a market value to the property in
excess of the minimum market value contained in the assessment
agreement nor prohibit the developer or redeveloper from seeking,
through the exercise of administrative and legal remedies, a
reduction in market value for property tax purposes; provided,
however, that the developer or redeveloper shall not seek, nor
• shall the city assessor, the county assessor, the county auditor,
any board of review, any board of equalization, the commissioner
of revenue,'or any court of this state grant a reduction of the
market value below the minimum market value contained in the
assessmMt agreement during the term of the agreement filed of
record regardless of actual market values which may result from
incomplete construction of improvements, destruction, or
diminution by any cause, insured or uninsured, except in the case
of acquisition or reacquisition of the property by a public
entity. Recording or filing of an assessment agreement complying
with the terms of this subdivision shall constitute notice of the
agreement to any subsequent purchaser or encumbrances of the land
or any part thereof, whether voluntary or involuntary, and shall
be binding upon them.
•
0
/-40
EIGIBIT E
SPECIAL ASSESSMENT AGREEMENT
This Agreement made as of this day of , 1990, by
and between the City of Richfield, a Minnesota municipal corporation (hereinafter
"City"), the Housing and Redevelopment Authority in and for the City of Richfield,
a Minnesota municipal corporation (hereinafter "HRA"), and
, a (hereinafter "Redeveloper");
WITNESSETH:
WHEREAS, Redeveloper owns certain real property in the City of Richfield
legally described on Exhibit A, attached hereto and hereby made a part hereof
(hereinafter the "Redevelopment Property"); and
WHEREAS, Redeveloper owns or may acquire certain additional real
property in the City of Richfield legally described on Exhibit B, attached hereto
and hereby made a part hereof (hereinafter the "Phase II Parcel"); and
WHEREAS, by agreement entitled dated as of
(hereinafter "Redevelopment Agreement") the Parties hereto
have agreed to undertake certain projects in the City of Richfield pursuant to a
Redevelopment Plan as described in the Redevelopment Agreement; and
• WHEREAS, the Redevelopment Agreement provides that certain assessable
public improvements described on Exhibit C, attached hereto and hereby made a
part hereof (hereinafter "Improvements") be constructed by the City; and
WHEREAS, certain public costs associated with the implementation of the
Redevelopment Plan including the costs of the Improvements are to be financed by
the issuance of (hereinafter "Street
Bonds") the principal and interest of which are payable primarily by the receipt of
tax increment received with respect to the Redevelopment Property by the HRA
pursuant to Tax Increment Financing Plan No. as amended, adopted by the
HRA on and by the City on , and Minnesota
Statutes Sections 469.174 to 469.179 (hereinafter "Tax Increment"); and
WHEREAS, certain other public costs associated with the Implementation of
the Redevelopment Plan are to be financed by the issuance of
(hereinafter "Taxable Tax Increment Bonds") the
principal and interest of which are also payable primarily by the receipt of Tax
Increment; and
WHEREAS, Redeveloper has requested the City and the HRA to execute this
Agreement for the purpose of providing additional security for the payment of
principal and interest on the Bonds and thereby inducing the City and the HRA to
issue the Bonds and proceed with the construction of the Improvements.
NOW, THEREFORE, on the basis of the premises and of the mutual
covenants and promises hereinafter provided, IT IS AGREED:
1 _41
1. Special assessments may be levied in accordance with this Agreement
for 100% of the costs of the Improvements and all related costs for which special
assessments may be levied pursuant to Minnesota Statutes, Chapter 429
(hereinafter collectively referred to as the "Improvement Costs"). All such costs
shall be allocated for levy at % ( percent) against the Redevelopment
Property and % ( percent) against the Phase II Parcel, except as
otherwise provided herein.
2. The levy of special assessments pursuant to this Agreement shall be
at such times, in such amounts (not exceeding the Improvement Costs), bear
interest at such rates, and be payable in a lump sum or in such installments as are
deemed appropriate in the sole and absolute discretion of the City Council. No
levy or levies of any amount or amounts totalling less than the amount of the
Improvement Costs shall exhaust the rights of the City to levy additional special
assessments hereunder.
3. Special assessments allocable to the Phase II Parcel shall not be
levied (except pursuant to paragraph _ of this Agreement) against the Phase II
Parcel provided Redeveloper complies with the following schedule for
redevelopment of the Phase II Parcel (the dates of which may be extended by
Resolution of the City Council when, in the discretion of the City Council, it is
deemed to be in the best interest of the City to do so):
(a) No later than , the Redeveloper shall have
submitted to the HRA and the HRA, in its absolute and sole discretion, shall
have approved a Concept Plan for Phase II containing the same detail as is
required for the Concept Plan described in Section 4.4 of the
Redevelopment Agreement.
(b) No later than , the Redeveloper shall
have commenced construction of the Phase II minimum improvements as
described in the approved Concept Plan for Phase II.
4. In the event Redeveloper has not acquired title to the Phase II Parcel
prior to the levy by the City of any special assessment pursuant to paragraph ,
assessments for the full amount of the Improvement Costs may be levied against
the Redevelopment Parcel.
5. Special assessments allocable to the Redevelopment Parcel shall not
be levied except pursuant to paragraph of this Agreement.
6. If Tax Increment, together with any other revenues received by the
City which are pledged to the Street Bonds and the Taxable Tax Increment Bonds
are insufficient to pay principal of and interest on the Street Bonds and the
Taxable Tax Increment Bonds when due, the City will levy special assessments for
any amount up to the full amount of the costs of the Improvements and, all related
costs for which special assessments may be levied pursuant to Minnesota Statutes,
Chapter 429 (hereinafter collectively referred to as the "Improvement Costs"),
against the Redevelopment Parcel and the Phase II Parcel.
7. The right of the City to levy special assessments pursuant to this
Agreement shall terminate upon the earlier of (i) one year after the last maturity
E-2
1_42
date of any of the Street Bonds or the Taxable Tax Increment Bonds, or (ii) receipt
by the City of Tax Increment or other revenues pledged to the payment of said
bonds sufficient to pay all principal and interest on said bonds and all other
obligations, contingent or otherwise, to which the Tax Increment is pledged under
the Redevelopment Agreement. All special assessments levied, whether or not
collected, and whether or not certified to Hennepin County, shall continue to be
valid and enforceable in accordance with the law. Upon termination of this
Agreement, the City shall execute an instrument acknowledging such termination
and releasing the Redevelopment Property and the Phase II Parcel from the
obligations of this Agreement upon the request of any owner thereof.
8. The City will incur no liability or responsibility to any person for a
failure to determine accurately the amount required to be assessed to provide
adequate funds for the payment of principal and interest on the Bonds.
9. Redeveloper agrees and covenants to the levy of Special Assessments
in the manner and amounts and at the times provided above, and in connection
therewith:
(a) waives notice and hearing on the levy of such Special
Assessments; and
(b) waives right to appeal Special Assessments levied pursuant to
this Agreement; and
• (c) agrees that Special Assessments in the amounts stated above
do not exceed special benefit to the Redevelopment Property and that the
fair market value of the Redevelopment Property will be increased in an
amount exceeding such Special Assessments as a result of the construction
of the Improvements.
10. The City does not hereby represent or warrant to any person that
Special Assessments provided for herein will be valid, enforceable or collected.
The City will incur no liability or responsibility to holders of the Bonds, Trustees
for the holders of the Bonds, the Redeveloper, the HRA or any other person for the
payment of any monies other than those actually received by the City through the
levy and collection of Special Assessments provided for herein. , In the event
Special Assessments levied pursuant to this Agreement become unenforceable by
operation of law or are declared invalid or unenforceable by a court of competent
jurisdiction, the City will have no further obligation with respect to such Special
Assessments; provided, however, that if the occurrence or defect which causes
such unenforceability can be remedied by reassessment, the City will undertake
such reassessment.
11. This Agreement shall bind the heirs, successors and assigns of
Redeveloper and shall run with the land described herein as the Redevelopment
Property and the Phase II Parcel.
•
E-3
'--43
• THE CITY OF RICHFIELD
By
Its Mayor
By
Its Manager
THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE
CITY OF RICHFIELD
By
Its Executive Director
By
Its Chairman
Is
By
Its
By
Its
0
E-4
1,44
STATE OF MINNESOTA )
ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
1990, by and , the Mayor
and Manager of the City of Richfield, Minnesota.
Notary Public
STATE OF MINNESOTA )
ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
, 1990, by and , the
Executive Director and Chairman of The Housing and Redevelopment Authority in
and for the City of Richfield, Minnesota.
Notary Public
STATE OF MINNESOTA )
ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
1990, by and , the
and of
Notary Public
0
E-5
•
EXMIT A
The Redevelopment Property
I- 4T
0
EXHIBIT B
The Phase H Pareel
U
.+I
L .J
EIHIIBIT C
The Improvements
0
V-49
r
EXHIBIT F
$6,000,000
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF HENNEPIN
THE HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF RICHFIELD
LIMITED REVENUE TAX INCREMENT NOTE
The Housing and Redevelopment Authority in and for the City of Richfield
(the "Authority"), hereby acknowledges itself to be indebted and, for value
received, promises to pay to the order of Robert Larsen Partners, Inc. a Minnesota
corporation (the "Owner"), solely from the source, to the extent and in the manner
hereinafter provided, the original principal amount of this Note, being Six Million
Dollars ($6,000,000) (the "Principal Amount"), together with interest thereon
accrued from , at the rate of interest of eleven percent (11%) per
annum (the "Stated Rate"), in the amount and on the dates (the "Scheduled
•
Payment Dates") set forth on the Payment Schedule attached as Schedule A hereto
and in the amounts stated thereon (the "Scheduled Payments"). Interest accruing
from , shall be added to principal on a semi-annual basis on each
and until
Any payments on this Note shall be applied first to accrued interest and
then to the Principal Amount in respect of which such payment is made.
Each payment on this Note is payable in any coin or currency of the United
States of America which on the date of such payment is legal tender for public and
private debts and shall be made by check or draft made payable to the Owner and
mailed to the Owner at it postal address within the United States which shall be
designated from time to time by the Owner.
The Note is a special and limited obligation and not a general obligation of
the Authority, which has been issued by the Authority to aid in financing a
"project," as defined in Minnesota Statutes Section 469.174, of the Authority within
and for the benefit of its Interstate-Lyndale-Nicollet Redevelopment Project Area
and Tax Increment Financing District ("District").
THE NOTE IS NOT A DEBT OF THE AUTHORITY, THE CITY OF
RICHFIELD, OR THE STATE OF MINNESOTA (THE "STATE"), AND NEITHER
THE AUTHORITY, THE CITY OF RICHFIELD, THE STATE NOR ANY POLITICAL
SUBDIVISION THEREOF SHALL BE LIABLE ON THE NOTE, NOR SHALL THE
NOTE BE PAYABLE OUT OF ANY FUNDS OR PROPERTIES OTHER THAN
AVAILABLE TAX INCREMENT, AS DEFINED BELOW.
• The Scheduled Payment of this Note due on any Scheduled Payment Date is
payable solely from and only to the extent that the Authority shall have received
as of such Scheduled Payment Date "Available Tax Increment," hereby defined by
i_41
. the Authority as tax increment received during the six month period preceding the
Scheduled Payment Date with respect to that certain real property located within
the District and described in the attached Schedule B (hereinafter "Property"); but
only to the extent that such tax increment has not been used to make a Scheduled
Payment as of the Scheduled Repayment Date or has not been used or will be
needed to pay debt service on the Bonds. It is further understood that if Owners
sells or otherwise transfers its interest to any portion of the Property, that the tax
increment derived from such partner shall no longer be included for the purpose of
calculating Available Tax Increment, unless the successor consents to such in
writing.
The Authority shall pay on each Scheduled Payment Date to the Owner the
lessor of the Available Tax Increment or the Scheduled Payment due thereon on
that date. To the extent that on any Scheduled Payment Date the Authority is
unable to make the total Scheduled Payment due on such date as a result of its
having received as of such date insufficient Available Tax Increment, such failure
shall not constitute a default under this Note and the insufficiency (whether
principal or interest or both) shall be added to the remaining principal balance of
the Note.
This Note shall terminate and the Authority's obligation to make any
payments under this Note shall be discharged and the Authority shall have no
obligation and incur no liability to make any payments hereunder immediately upon
the occurrence of an Event of Default under the Contract for PRivate
Development, dated , 1990, between the Authority and the
• Owner, subject to the Notice and cure provisions of Section 9.2 thereof.
This Note shall not be payable from or constitute a charge upon any funds of
the Authority or the City of Richfield, and the Authority shall not be subject to
any liability hereon or be deemed to have obligated itself to pay hereon from any
funds except the Available Tax Increments, and then only to the extent and in the
manner herein specified.
The Owner shall never have or be deemed to have the right to compel any
exercise of any taxing power of the Authority or the City of Richfield or of any
other public body, and neither the Authority or the City of Richfield nor any
director, commissioner, council member, board member, officer, employee or
agent of the Authority or the City of Richfield, nor any person executing or
registering this Note shall be liable personally hereon by reason of the issuance or
registration hereof or otherwise.
This Note shall not be transferable or assignable, in whole or in part, by the
Owner without the prior written consent of the Authority; provided that the Owner
may pledge the payments hereunder to a lender or a successor purchaser of the
project, but only with prior written notice thereof to the Authority.
This Note may be prepaid in full at any time at the option of the Authority;
and may also be prepaid at the request of the Owner, but only if the Authority first
determines that sufficient tax increment is or will be generated to permit such
prepayment.
n
LJ
F-2
1 _Sa
i The Authority's determination shall be incontestable. Prepayment will be
made in either event by paying to the Owner an amount equal to the face amount
of the Note (original Principal Amount) less any payments of principal made to the
date of prepayment.
This Note is issued pursuant to Resolution of the Authority and is
entitled to the benefits thereof, which Resolution is incorporated herein by
reference.
IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions, and
things required by the Constitution and laws of the State of Minnesota to be done,
to have happened, and to be performed precedent to and in the issuance of this
Note have been done, have happened, and have been performed in regular and due
form, time, and manner as required by law; and that this Note, together with all
other indebtedness of the Authority or the City of Richfield outstanding on the
date hereof and on the date of its actual issuance and delivery, does not cause the
indebtedness of the Authority or the City of Richfield to exceed any constitutional
or statutory limitation thereon.
IN WITNESS WHEREOF, the Board of Commissioners of the Authority has
caused this Note to be executed by the manual signatures of the Chairperson and
the Executive Director of the Authority and has caused this Note to be dated
, 1990.
11
Chairperson
Executive Director
RC125-006
0
F-3
fUBLTCORP. 1NL ?L1.V1L-J•il--yl ?- -- -- -- -
Citr of Richfield
L
msm ParOws Liaited Rovwm Note Rate ¦ 11.00%
M•!!!t!#!!#R!#!#!
-0600106 ". - Ott
!!!!t!#!*!tR#K#!Rl/lttRf*1144""R##K!!!!!!#RKItR#l/f7
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. Accrued
Principal
Interest
Total
[b
T0: !!# !!N
• Yra. Mth. Yr. 8ela?- lntenet Pe
Yrht
Payment
Peyirwnt
$elence
Nth.
Yr.
Yrs PeY? '
ItMR!lIRRRK#!t!i!!!!lIRMfR#tlKitRR#tt!# R!!#RlMtt!!R!t# 1Ki kRl/11144#tt!#KR#R!!tt#!!!tK!!!!K!!!t##! tt
* . Date
?
KR t 1!141 RttR#Kit /RN
0.0 08-02 1940 6,000,000
* 330,000 0 0 0 6,330,000 02.01 1991 0
5 +
0.5 02-02 1991 6,530,000
r 348,150 0 0 0 6,678,150 08.01 1991 .
1
0
1.0 08.02 1941 6,675,150 36?,298 0 0 0 7,045,"$ 02.01 1992 .
1
5 •
1.5 02-02 1992 7,045,448
' sar,soo 0- 0 0 7,432,94$ 06.01 1992 .
2
0 t
2.0 08-02 1942 7,432,968 404,812 0 0 0 7,841,760 02.01 1993 .
2
5 0
2.5 02-02 1943 7,841,760
431,297
0
0
0
275
8
057
08-01
1943 . 2.01
3.008-02 1993 8,273,057
4s5,013
0
0
o ,
,
3.0
08.01 :
• 3.S 02-02 1994 8,728,075 480
0" 0 0 5,728,075 of-ot 1994 3.5 02•01
• 4.0 08-02 1994 9,206,119 ,
0
91,850
506,467 0
598
297 9,205,119
9
116
269 06.01
02.01 1996 4.0 08-01 *
' 4.502.02 1945 9,116,269
`
0
96,902
501,395 ,
596,297 ,
,
9,019
366
08.01 19"
1996 415 02.01
1
3.006-02 Ms 9,019,366
•
0
102,232
496,065
S96,297 ,
8,917,135
02.01
1946 5.0
5
5 06.01 *
*
3.5 02-02 19% 8,917,135
' 6.0 06.02 1996 6
804
280 0
0 107,855 490,442 $98,297 8,809,280 08-01 1996 .
6
.0 02-01
08.01 t
.
,
6.5 02.02 1997 8,695,493
0 113,787
120
043 4x4,510
476
252 596,297
$9 8,695,493 02.01 1997
6.5
02-01 *
' 7.0 08.02 1947 8,575,449
0 ,
126,647 ,
471,650 8 ,297
$98
297 x 575 449
8
448
801 Od•pi
02.01 1997 7.0 08.01 •
• 7.5 02.02 1996 $,"$,Sol
*
0
133,613
,
464 684
, ,
$98,297 ,
,
8,315,18e
oa•ot 1998
190$ 7.5
$
o 02.01
*
•
8.0 08-02 1948 8,315,188
6.502.02 19" 8
174
227 0
0 140
962 457
333 598,297 6, 174, 227 02.01 19" .
6.5 0$•01
02.01 •
,
,
? 9.0 08-02 1994 8,025,512
0 148,715
156
a% 449,582
441
403 $98,297
$96
2 8,025,512 08-01 1949
9.0
05.01 t
# 9.5 02-02 2000 7,868,618
0 ,
165,523 ,
432,774 .
97
596,297 7,868,618
7
703
045 02-01
06.01 2000
2000 9.5 02-01 *
0.0 08.02 2000 7,703,095
?
0
174,627
423.670
596,297 ,
,
7
528
468
02.01
2001 10.0 06.01 *
0.5 02.02 2001 7,528,4"
*
0
184,231
414,066
598,297 ,
,
7,344
237
06-01
2?1 10.5
11
0 02.01 *
11.0 08 02 2001 7,344,237
11.5 02.02 2002 7
149
873
0
194,364
403,933
5461297 ,
7,149,873
02.01
2002 .
11.5 08.01
02.01
*
,
,
• 12.0 08.02 2002 6944 819 0
0 205,054
216,332 393,243
381
965 $96,297
$98
297 6 944 819
6
72
4 05.01
2002
12.0
08-01
*
12.5 02-02 2003 6,728,4x7
0
228,230 ,
370,067 ,
$96,297 ,
87
8,
6
500
257 02-01
08.01 2003
2005 12.5 02-01 *
* 13.0 08-02 2003 6,500,25?
*
0
240,783
357,814
S98 297
1 ,
,
6 259 474
02.01
a" 13.0 05-01 .
13.5 02.02 2004 6,259,414
* 0 254,026 3",271 598
29? 6/005/448 08-01
? 13.5
14
0 02.01 *
14-008-02 20" 6.005,448
• 14 0 267,997 330,300 S"'297 5,757,45) 02.01
2005 .
16
5 O2-01
*
.5 02-02 2005 5.737,451
* 13.0 06-02 2005 5
454
714 0 282,7!7 315,560 $96,297 9,454,714 08.01 2005 .
15.0 02.01
01-01 *
,
,
# 13.5 02.02 2006 5,156,426 0
0 296,288
314
694 300,009
281
603 598.297
96 5,156,426 02.01 2006 15.5 02-01 t
' 16.0 08.02 2006 4,841,733
0 ,
332,002 /
266
296 $
,297
598
297 4,841,753
4
50
7 09-01 2006 16.0 06.01 *
16.5 02-02 2007 4,509,731
0
350,262 ,
24$,035 ,
598
29? ,
9,
31
4
159
469 02.01
08-01 2007 16.5 02.01 0
? 17.0 08-02 2007 4,159,469
*
0
369,526
228,771 /
5981297 ,
,
31784
943
02.01 2007
2008 17.0
1 05.01
*
MS 02-02 2009 3,70,943
18.0 06-02 2008 3
400
045
0
389,$50
208,447
398,297 1
3,400,043
08.01
2008 .
7.5
18.0 02.01
08.01 *
/
,
,
* 18.5 02-02 2009 2,9861801 0
0 411,292
433
913 187,005
164
364 $98,297
59x 2,98x,801 02-01 2009 18.5 02-01 *
* 19.0 08.02 2009 2,554,$x6
0 ,
457,778 ,
140,519 ,297
598
297 2,554,aa6
097
2
110 06.01
02. 2009 19.0 08.01 R
* 19.5 02.02 2010 2,097,110
•
0
4821953
115,341 ,
$96
2% ,
,
1
614
1ST 01
06.01 2010 19.5 02.01 *
20.0 08.02 2010 1,614,157
0
509,515
88,779 ,
596,294 ,
,
1
104
641
02.01 2010 20.0 08.01 *
• 20.5 02.02 2011 1,104,"1
•
0
537,539
60,735
598,294 ,
,
567
103
08-01 2011 20.5 02.01 *
21.0 08.02 2011 $67,103
0
567,102
31
191
596
293 ,
0
1011
21.0
08-01 1
* 21.5 02.02 2012 p 0
0 ,
0 . 02.01 2012 21.5 02.01 •
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